The borders that disadvantage migrant women in enjoying human rights
| Author | Lourdes Peroni |
| Date | 01 June 2018 |
| DOI | 10.1177/0924051918771229 |
| Published date | 01 June 2018 |
| Subject Matter | Articles |
Article
The borders that disadvantage
migrant women in enjoying
human rights
Lourdes Peroni
The Helena Kennedy Centre for International Justice, Sheffield Hallam University, Sheffield, UK
Abstract
This article launches a frame to investigate the inequalities underlying the human rights violations
migrant women may experience. Drawing on intersectionality theory and on Ratna Kapur’s
concept of ‘normative boundaries of belonging’, the article puts forward the notion of ‘intersecting
borders of inequality’. The notion interrogates three types of borders that may construe migrant
women as outsiders or lesser members in society: formal, normative and practical borders. The
article demonstrates that scrutinising the ways in which these borders intersect illuminates some
of the structures disadvantaging migrant women and invites imagining wider responses to tackle
these disadvantages. To illustrate these arguments, the article uses examples of the European
Court of Human Rights’ case law.
Keywords
borders, European Court of Human Rights, inequality, intersectionality, migrant women
Introduction
In producing or reinforcing ‘relations of dependency and power’ through immigration controls,
1
States may disadvantage migrant women in enjoying human rights and engender conditions ripe
for human rights abuses. Think of immi gration norms that make domestic work ers – who in
practice are often women – dependent on their employers for legal status.
2
Employers may take
Corresponding author:
Lourdes Peroni, The Helena Kennedy Centre for International Justice, Sheffield Hallam University, 42 Collegiate Crescent,
Sheffield, S10 2BP, UK.
E-mail: l.peroni@shu.ac.uk
1. Bridget Anderson, ‘Where’s the Harm in That? Immigration Enforcement, Trafficking, and the Protection of Migrants’
Rights’ (2012) 56 American Behavioral Scientist 1252.
2. eg Virginia Mantouvalou, ‘Human Rights for Precarious Workers: the Legislative Precariousness of Domestic Workers’
(2012) 34 Comparative Labor Law and Policy Journal 141-3.
Netherlands Quarterly of Human Rights
2018, Vol. 36(2) 93–110
ªThe Author(s) 2018
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advantage of the dependent or precarious status produced by immigration norms to control and
exploit domestic workers.
3
Recent human rightsscholarship has investigated whether, to what extent, and how international
human rights law may tackle the inequalities underlying this kind of human rights abuses. Human
rights scholars havediscussed the role of immigration norms and practice in creating or aggravating
theseinequalities as well as the (in)capacityof internationalhuman rights law to challengethese norms
and practice.
4
Importantly, some of these scholars have exposed the gendered natureof immigration
normsregulating migrantwomen’s relationsin different spheres,including work andfamily relations.
5
Building on these scholarly efforts, this article interrogates how the borders sustained by
immigration controls intersect with other borders to disadvantage migrant women in their enjoy-
ment of human rights. In particular, it scrutinises the borders th at formally, normatively, and
practically construe migrant women as outsiders or lesser members in society. In making these
arguments, the article borrows Ratna Kapur’s notion of ‘normative boundaries of belonging’.
6
These boundaries are sustained by dominant societal assumptions about sexua lity, family and
culture that inform law’s responses to migrants.
7
The arguments further draw on intersectionality
theory,
8
understood as interacting structures of inequality (for example, sexism, racism, immigra-
tion norms) rather than as interacting categories of identity (for example, sex, race, migration
status).
9
It is therefore ‘structural intersectionality’
10
that informs the arguments in this article.
The article demonstrates that the notion of intersecting borders of inequality has the ability to
put disadvantaging structures front and centre in the analysis of migrant women’s human rights
claims. The notion does not only illuminate the State’s role in creating, reproducing and reinfor-
cing these structures. It additionally widens the set of responses to tackle the State’s contributory
role to disadvantage. To illustrate how intersecting borders of inequality may work in practice, the
article uses cases of the European Court of Human Rights (the ECtHR or the Court) as examples.
‘Intersecting borders of inequality’
This part introduces the notion of ‘intersecting borders of inequality’ as a lens to see and challenge
the disadvantages underlying the violations of migrant women’s human rights. The notion does not
take identity categories such as sex, race, and migration status as the starting point in the human
rights analysis. Rather, it turns the disadvantaging structures themselves into points of departure.
11
3. ibid.
4. eg Vladislava Stoyanova, Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive
Obligations in European Law (CUP 2017); Fulvia Staiano, The Human Rights of Migrant Women in International and
European Law (Eleven International Publishing 2016); Siobhan Mullally, ‘Migration, Gender, and the Limits of
Rights’ in Ruth Rubio-Marı´n (ed), Human Rights and Immigration (OUP 2014).
5. Staiano (n 4).
6. Ratna Kapur, Makeshift Migrants and Law: Gender, Belonging, and Postcolonial Anxieties (Routledge 2010) 39-55.
7. ibid 4.
8. Kimberle´ Williams Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: a Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Policies’ (1989) 1 The University of Chicago Legal
Forum 139.
9. Sumi Cho, Kimberle´ Williams Crenshaw and Leslie McCall, ‘Toward a Field of Intersectionality Studies: Theory,
Applications, and Praxis’ (2013) 38 Signs: Journal of Women in Culture and Society 797-800.
10. ibid.
11. ibid 796. I follow renewed intersectionality efforts seeking to ‘foreground the social dynamics and relations that
constitute subjects, displacing the emphasis on the subjects and categories themselves as the starting point of inquiry’.
94 Netherlands Quarterly of Human Rights 36(2)
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